Moratorium on building a non-starter?

PORTSMOUTH — It appears initiating an emergency citywide moratorium on most commercial and residential development may not be as easy as some would think.

Charles McMahon

PORTSMOUTH — It appears initiating an emergency citywide moratorium on most commercial and residential development may not be as easy as some would think.

And depending upon who you ask, it may not even be warranted.

"I don't see a legal justification for it," local attorney Peter Loughlin said this week when asked about the growing interest in enacting a moratorium in Portsmouth.

Having specialized in land use litigation all over the state for years, Loughlin said the process of enacting a moratorium is complicated and involves specific findings of fact.

While serving as city attorney in Portsmouth in the 1970s, Loughlin said he drafted the first growth control moratorium ever seen in the state. Loughlin said the reason the moratorium was enacted was because the city at the time had become inundated with residential development projects, which in turn had a major impact on local schools, utilities and the city's water and sewer system capacity.

"All of it was under assault," he said. "It was the exact kind of thing that justified a moratorium."

Since then, Loughlin said the state has come a long way in strengthening laws surrounding moratoria.

"The law has been codified now," he said.

While it's not uncommon for a moratorium to be proposed, Loughlin said ensuring one is legally justified is not as easy as it might seem.

The key to instituting a moratorium in New Hampshire, according to Loughlin, is that it must involve "unusual circumstances."

Loughlin said while there are people in Portsmouth who have varying views of what should and shouldn't happen in the city, that doesn't necessarily translate into the need for a moratorium.

"I don't see that all of a sudden there is some unusual circumstance or some change that would require some immediate action or reaction to justify a moratorium," he said.

Recently, the idea of halting development in the city was raised by the newly formed civic group Portsmouth Now!, which was created to focus a spotlight on land use boards and zoning laws to better protect the city's rare but imperiled historic flavor.

Mayor Eric Spear said he believes people are rightfully concerned about the pace and scale of development in the downtown. Spear said the council, land use boards and staff have been working hard to address those concerns over the last few months.

"The proposal for a citywide year-long stoppage of all construction over 5,000 square feet, however, will lead to higher taxes for residents, lower employment and leaves the city at risk financially when property owners litigate to protect their rights," he said. "It's far better for us to continue to aggressively work through the planning department and Planning Board and achieve growth that is harmonious with our surroundings and expectations."

A moratorium would certainly come at a financial cost to the city.

According to its Inspection Department 2012 annual permit report, there were four new commercial buildings to receive permits last year. The total construction value was reported at $8.2 million and $39,860 was paid in building permit fees.

While on the surface the City Council appears interested in at least having the conversation, the request involves many steps, according to City Attorney Robert Sullivan.

The first step involves the Planning Board, which Sullivan said must first conduct an in-depth study of the situation in the city and make specific findings of fact to support the rationale that would call for a moratorium.

"None of those things have happened," Sullivan said. "In the end, the council makes the decision, but is required to act on a recommendation from the Planning Board."

Sullivan said it would be up to both the Planning Board and City Council to determine the details of any moratorium, such as how long it lasts, which projects it impacts and which areas of the city it is in effect.

Sullivan said the City Council must be very careful when heading down this path, however.

"Moratoria are authorized by state law," Sullivan said. "However, the state law clearly recognizes that such moratoria are an imposition on private property developer rights and therefore there are strict conditions."

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